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Posts Tagged: "Chief Judge Michel"

Inconvenient Truth: America no longer fuels the fire of creative genius with the patent system

The problem with not having an independent invention defense, according to Lemely, is that people who invent themselves couldn’t possibly find out about what others have invented because these inventions lay in unpublished patent applications at the Patent Office. “You have people who genuinely tried not to infringe,” Lemley said… While Professor Lemley is entitled to his opinion, and he is an excellent and formidable attorney that no one should ever take for granted, he is not entitled to his own facts. Deliberate disdain for patent property is a purposeful business model driving mega-tech IT incumbents. This business model is called “efficient infringement.” Efficient infringement is a cold-hearted business calculation whereby businesses decide it will be cheaper to steal patented technology than to license it and pay a fair royalty to the innovator, which they would do if they were genuinely trying not to infringe as Professor Lemley suggests.

Taking stock of the health of the American patent system, a system in crisis

“In our time together today we are going to try and take stock of the health of the American patent system,” Michel began. “It is important to remember that the patent system was founded in the Constitution… and although the world ‘right’ appears many times in the Bill of Rights, in the original Constitution the only ‘right’ mentioned is the patent right.”… Investment is being disincentivized by uncertainty created by the aforementioned three waves of changes to the system. We should be looking at the impact on the flow of money, Michel explained.

Have We Gone Too Far to Eradicate Weak Patents?

Asking whether the industry has gone too far to eradicate weak patents misses the point entirely, and to some extent will allow those who want the patent system to continue its march off the cliff to inappropriately claim the moral high ground. Regardless of how you prefer to characterize problem patents, whether it be as weak, bad, low quality, or invalid, no one wants those problematic patents to issue or be used to harass individuals or businesses as they sometimes have been used by bad actors. But that begs the real question. In an attempt to eradicate the system from those problematic patents have things gotten out of control and, thereby caused collateral damage in an indiscriminate way to all patents, including high quality, strong patents? To that question the answer must be a resounding yes!

IAM hosts Patent Law and Policy event in Washington, DC

The inaugural IAM event Patent Law & Policy, which will focus on how developments in law and policy affect patent owners’ ability to monetize their rights, will take place in Washington DC on November 17, 2015. This one-day conference in Washington DC offers all those involved in the patent market the perfect opportunity to listen to, learn about and engage in the many legal and policy debates currently taking place around patents.

Patent reform fuels fear, paralyzes U.S. innovation market

One thing that all the changes in patent law over the last decade has accomplished is to make it a far better business decision to infringe. There has always been concern in the patent holder community about something called the efficient infringement theory. Under this theory it makes more sense to infringe rather than to negotiate and seek an amicable resolution. In the past this was a problem largely isolated to small businesses and independent inventors who simply didn’t have the resources to fight when their rights were being infringed by a large entity that was not interested in participating in a responsible way in the honor system that Judge Michel describes. Today, however, efficient infringement is alive and well, and is a problem for all patent owners regardless of size.

Judge Michel says Congress stuck in a time warp on patent reform

The problem facing the country as embodied in Congressional proposals to change the patent system is that it’s stuck in a time warp. Congress acts as if the landscape today was exactly the way it looked in 2010 or 2011, but in fact it has totally turned upside down in the last two years. We used to have, for the most part in this country, what I’ll call an honor system where companies that were using technologies patented by others willingly took licenses without being forced by court orders to do so. The honor system now is largely gone.

Patent Reform 2.0 – The Next Round of Patent Reform

On Monday, May 11, 2015, IPWatchdog will a co-sponsor a roundtable discussion on patent reform. This event will take place at the law offices of McDermott Will & Emery, which is located directly across the street from the U.S. Capitol. Bernie Knight, a partner with McDermott and a former General Counsel to the United States Patent and Trademark Office, will co-moderate the event along with me. We hope you can join us for this discussion.

Retroactive changes to patent eligibility law suggest patents are not a property right

Changing the rules of the game is fundamentally unfair, which would be obvious to everyone if we were talking about football, soccer or playing a board game. Somehow common sense is abandoned when dealing with patents. Changing patent laws in midstream seems particularly un-American, both because it disturbs vested property rights and because it is quintessentially anti-inventor. If we want to maximize a property rights regime it must be certain, stable and predictable. Patents are no exception.

A sincere desire to improve the quality of the patents

The last time patent quality was being discussed the leadership of the Office had not come from the private sector, but rather came from within government ranks. Running the USPTO today are two people with substantial private sector experience and knowledge about how patents are used. This bodes well for the future, and is no doubt why so much of the focus on patent quality today was on issuing patents that deserve to be issued.

A sensible response: Do not rush to pass a bill

The sensible response to all these new and evolving circumstances is not a rush to pass a bill, but a pause to evaluate the rapidly changing situation. Many expert leaders, including the former PTO Director David Kappos, have so suggested. So far Congress does not seem to be listening, but they should. The future of our economy and present job creation depend on a well functioning patent enforcement regime. Let’s make it more efficient, not eviscerate or hobble it.

What Mattered in 2014: Reflecting on the Biggest Moments in IP

It is one again time to take a moment to look back on the year that was, reflecting on the biggest, most impactful moments of the year. For us that means looking backward at the most impactful events in the world of intellectual property. Unlike in years past where we would get a variety of different perspectives from industry insiders, there…

Our Political Patent System: Is Patent Justice for Sale?

The unfortunate reality is the United States is no longer the most favorable jurisdiction for innovators. There has been a full assault on patent rights that started at least as early as 2005. Ever since we have seen proposed legislative change after proposed legislative change, as well as a never ending stream of cases at the Supreme Court and Federal Circuit that continue to weaken patent rights. Innovators are under attack from ever expanding judicial exceptions that render more and more subject matter patent ineligible, and from an ever expanding view of what it means to be obvious. This coupled with fresh new ways to challenge issued patents and concern about a patent litigation explosion that doesn’t exist is leading to extraordinary mischief in the Courts, on Capitol Hill and in the White House.

Judge Michel Speaks on the Future of the Federal Circuit

Judge Michel: “I’m aghast at the suggestions that are made in some blogs that the Federal Circuit be abolished. The idea that you need more so-called percolation by having different appellate courts take different views on patent laws is completely crazy in my opinion. There’s plenty of percolation just within the Federal Circuit and the Supreme Court doesn’t seem to have the slightly problem identifying cases where they feel that corrections are needed. Look, I don’t think the Federal Circuit’s perfect. I’m glad there is a Supreme Court. And whether I agree with Alice or don’t agree with Alice or love KSR or didn’t love KSR is really beside the point. Every power center needs some supervision over them. In the case of the Congress it’s the voters. In the case of the court it’s the Supreme Court, or a higher court in the hierarchy. And I think that’s all well and good. So the Federal Circuit isn’t perfect but I think it’s a very good court. I think it’s been a huge improvement over the chaos of before 1982 and the various regional circuits. And so I hope we don’t over correct by getting rid of the Federal Circuit.”

Judge Michel says Congress May Have to Revise 101

On July 3, 2014, I had the opportunity to interview Judge Michel, former Chief Judge of the United States Court of Appeals for the Federal Circuit. The interview took place at the University Club in Washington, DC. Our conversation was wide ranging, dealing with all the pressing issues of the moment in the patent world. In part 1 of the…

Judge Michel says Alice Decision ‘will create total chaos’

Judge Michel: “[I]t’s bad news at least for the reason that it will create total chaos. No one will know what is eligible and what is not eligible so there will be no predictability, no consistency, and that by itself will create delays and costs and discourage progress that the Constitution was trying to promote by encouraging Congress to create the patent system. Consider the decision makers. You’ve got 9,000 patent examiners, 250 or so board members, approximately 1,000 district judges, and a few other people, the International Trade Commission, the Federal Circuit, and so on. So you’re talking about 10,000 decision makers. I don’t see any way they can apply the Alice standard in a way that’s fair or consistent or predictable. And all the other people who are involved in advising economic actors and business leaders are similarly faced with chaos and uncertainty, delay and extra costs.”